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ELCDismissedNot stated in the excerpt· [2020] KEELC 3360 (KLR)

Municipal Council of Kisumu v Avatar Singh Reheal & Attroney General (Environment & Land Case 608 of 2015) [2020] KEELC 3360 (KLR)

Environment and Land Court
28 February 2020
AOA.O. Ombwayo
645 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a defendant's bid to end a land case early because earlier lawsuits involved different issues, not the same dispute.

What this practically means

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Executive summary

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The 1st Defendant filed a Notice of Preliminary Objection dated 24th April 2012 arguing that the Plaintiff's suit was res judicata, the issues being substantially the same as those determined in its favour in Kisumu CMCC No. 115 of 1993 and Winam SRMCC No. 380 of 2005. The Plaintiff filed Grounds of Opposition dated 3rd February 2020 contending that the objection was incompetent, did not meet the legal requirements, and lacked merit. Counsel made rival submissions adopting those positions. A.O. Ombwayo J framed two issues: the threshold for a preliminary objection, and whether the suit is res judicata. On the first, the court applied the classic Mukisa Biscuit test, holding that the res judicata plea was a pure point of law which, if the pleaded facts were correct, would dispose of the suit. On the second, the court applied the Court of Appeal's decision in Kenya Commercial Bank Limited v Benjoh Amalgamated Limited, which requires all five elements of res judicata under Section 7 of the Civil Procedure Act to be present conjunctively. The court found that Kisumu CMCC No. 115 of 1993 centrally involved blockage of an access road to Plot 2-504-1 Migosi owned by Rose Achieng Odhiambo, while Winam SRMCC No. 380 of 2005 sought to lift a caution on Kisumu/Kanyakwar 'A'/70 by Fredrick Omondi Oyoo. The present suit primarily concerned the validity of the alleged compulsory acquisition of Kisumu/Kanyakwar 'A'/70 by the Plaintiff. Since the issues were not directly and substantially in issue in the former suits, the conjunctive elements were not satisfied. The preliminary objection was dismissed on 28th February 2020. No costs order is recorded in the judgment.

Key legal issues

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01

Threshold for a preliminary objection

Holding

The objection raised a pure point of law (res judicata) which, if the pleaded facts were correct, would dispose of the suit, and thus met the Mukisa Biscuit threshold

Reasoning

The court adopted the classic test in Mukisa Biscuit: a preliminary objection must consist of a point of law pleaded or arising by clear implication from the pleadings, argued on the assumption that the other side's pleaded facts are correct, and capable of disposing of the suit without ascertaining facts or exercising discretion. The res judicata plea satisfied this test.

p. 1
02

Whether the suit is res judicata

Holding

The suit is not res judicata because the issues were not directly and substantially in issue in the two former suits, so the conjunctive elements of Section 7 were not met

Reasoning

Applying KCB v Benjoh Amalgamated, all five elements of res judicata must be present conjunctively. Kisumu CMCC No. 115 of 1993 concerned blockage of an access road to Plot 2-504-1 Migosi, and Winam SRMCC No. 380 of 2005 concerned lifting a caution on Kisumu/Kanyakwar 'A'/70. The present suit concerns the validity of the alleged compulsory acquisition of Kisumu/Kanyakwar 'A'/70, a distinct subject matter. The objection therefore failed.

p. 2

Legal principles established

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  • A preliminary objection must raise a pure point of law on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained or judicial discretion is sought
  • The elements of res judicata under Section 7 of the Civil Procedure Act are conjunctive and must all be present before a suit is deemed res judicata

Court orders

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  1. 1.The 1st Defendant's Notice of Preliminary Objection dated 24th April 2012 is dismissed

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (2)

  • Mukisa Biscuit Manufacturing Company Limited v West End Distributors Limited
    [1969] EA 696
  • Kenya Commercial Bank Limited v Benjoh Amalgamated Limited
    [2017] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; preliminary objection under Section 7 of the Civil Procedure Act (res judicata)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Municipal Council of Kisumu v Avatar Singh Reheal & Attroney General (Environment & Land Case 608 of 2015) [2020] KEELC 3360 (KLR)", Case Analysis (2020). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3360/eng@2020-02-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.